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Triboro Quality Medical Supply, Inc. As Assignee of Zinaida Averova v. State Farm Mutual Automobile Ins. Co

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


June 28, 2012

TRIBORO QUALITY MEDICAL SUPPLY, INC. AS ASSIGNEE OF ZINAIDA AVEROVA,
APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 12, 2010.

Triboro Quality Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2012

PRESENT: WESTON, J.P., PESCE and ALIOTTA, JJ

The order granted defendant's motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground of collateral estoppel.

Collateral estoppel is a specific form of res judicata which bars "a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). "In order to invoke the doctrine, the identical issue must necessarily have been decided in the prior action or proceeding and be decisive of the present action or proceeding, and the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination" (Comprehensive Med. Care of NY, P.C. v Hausknecht, 55 AD3d 777, 778 [2008]; see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]). Furthermore, the party seeking to rely on collateral estoppel has the burden of establishing that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Forcino v Miele, 122 AD2d 191, 193 [1986]; Concord Delivery Serv., Inc. v Syossot Props., LLC, 19 Misc 3d 40, 43 [App Term, 9th & 10th Jud Dists 2008]). The party attempting to defeat the application of collateral estoppel has the burden of establishing the absence of a full and fair opportunity to litigate (see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]; Uptodate Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 42, 44 [App Term, 2d, 11th & 13th Jud Dists 2009]).

In the case at bar, defendant established that the issue whether the assignor's injuries arose "out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) was identical to the issue previously decided by the jury in an earlier personal injury action which plaintiff's assignor had commenced against defendant's insured. In support of its motion, defendant submitted a copy of the verified complaint from the prior action, in which it was alleged that defendant's insured "struck" plaintiff's assignor with her car, a transcripted copy of the jury verdict, in which the jury determined that the vehicle of defendant's insured never made "contact" with plaintiff's assignor, and a copy of the judgment dismissing the prior action. Thus, defendant demonstrated that plaintiff was ineligible to receive reimbursement of no-fault benefits because the assignor's injuries did not result from an insured incident (see Central Gen. Hosp., 90 NY2d at 199).

Accordingly, the order is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur. Decision Date: June 28, 2012

20120628

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